You can’t clean up after Donald Trump in a day.
That’s a lesson President Joe Biden learned again this month when a federal court ruled that he can’t simply call an end to a Trump-era policy of requiring asylum seekers from Central and South America to remain in Mexico — not cross the border — while they await hearings.
Trump’s Migrant Protection Protocols, which Biden suspended on his first day in office, were reinstated on Aug. 13 by U.S. District Court Judge Matthew Kacsmaryk. The judge ruled that the Biden administration had acted arbitrarily and capriciously in ending Trump’s “Remain in Mexico” program, as the policy commonly is called, failing to follow proper procedures and not considering the “main benefits” of the program.
In a 6-3 decision a week later, the U.S. Supreme Court refused to disturb Kacsmaryk’s ruling.
Defenders of the Remain in Mexico policy say it reduced pressure on overburdened immigration officials, but the evidence is clear that it also led to violations of due process for the asylum seekers. Large numbers of asylum seekers — 44% — failed to attend their hearings on U.S. soil when forced to wait in camps on the Mexican side of the border, raising serious questions about the operation of the program.
It is fair to suspect that the real intent of the program was to make seeking asylum impossibly difficult. Of the approximately 10,000 people who finally got a chance to present their case in front of an immigration judge in 2019, only 11 were granted asylum. That is an approval rate of just one tenth of 1%.
More alarming, the Remain in Mexico program, which was begun in 2019, exposed asylum seekers to high levels of physical danger and poor living conditions in a foreign country. According to human rights advocates, there were more than 1,500 publicly reported cases of murder, rape, torture, kidnapping and other types of assault perpetrated against asylum seekers forced to wait in Mexico.
At a refugee tent camp at the border, in Matamoros, Mexico, more than 2,000 migrants at a time were living in miserable conditions. Parents would scavenge cardboard to stop the summer heat radiating off the pavement from burning their children’s skin.
The Biden administration now has several recourses of action, all of which should be pursued.
To begin with, the administration should continue its legal challenges to the Remain in Mexico policy. The Supreme Court declined to issue a stay of Kacsmaryk’s order that the program be revived, but the court has yet to rule on program’s legality as a whole.
The administration also should work more closely with the Mexican government to bring greater order and safety to the camps of asylum-seekers on the Mexican side of the border. Most especially, U.S. customs officials should redouble efforts to make sure asylum seekers are notified of their hearings and provided ready access.
And the administration should beef up immigration processing facilities and services so that there is a much shorter waiting time for asylum-seekers on either side of the border.
To be clear, we don’t see much of a legal foundation for the Trump administration’s Remain in Mexico policy.
Trump’s Department of Homeland Security argued that it had the power to execute the policy through a section of the Immigration and Nationality Act that allows the U.S. to return a person to a neighboring country through the duration of the person’s court proceedings. But Congress has provided specific instructions that asylum seekers should remain in the country while their cases are pending.
Even as the Biden administration seeks to fully terminate the program, it could do more immediately to ease the program’s worst consequences. The administration should restore an immigrant processing system on the border — more hearing officers, more lawyers and more temporary living facilities — capable of handling large numbers of asylum seekers.
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